Lawyer and Witness: A Special Relationship

Vol. 1,No. 11

Dan Small

Dan Small is a partner in the Boston and Miami offices of Holland & Knight LLP. He is a member of the firm’s Trial, White Collar, Health Law, and Securities Litigation Practice Groups. Mr. Small’s practice focuses on SEC and other governmental agency matters, complex civil litigation, witness preparation, and white-collar criminal matters. Mr. Small has extensive jury trial and other litigation experience, based on 10 years as a federal prosecutor and over 15 years in private practice. He is the author of two other best-selling American Bar Association books, Going to Trial and Letters for Litigators.

From Preparing Witnesses: A Practical Guide for Lawyers and Their Clients, 3rd edition, chapter 2

Find out how to understand your client’s needs.

Learn how to earn the trust of your client.

In any area of the law, the relationship between lawyer and client is an important and unusual one. First, it is confidential. The attorney-client privilege creates a wall of confidentiality that is unmatched in any other profession. Second, lawyers have knowledge and experience that are vital to people going through a wide range of important events. Third, lawyers can “do” things for people in the legal arena that others cannot: represent them, speak for them, and sometimes act for them.

In few places in the legal world is that relationship as close and complex as that between a lawyer and a client who is going to be a witness in a legal proceeding or an investigation. That special relationship puts unusual responsibilities and burdens on both lawyer and client. A lawyer in this type of situation must act with feeling and wisdom. That may include the following:

Learn about the client’s business, or other matters relating to the inquiry. Part of the challenge of any litigation is learning about a new world—a new product, profession, technology, or whatever. To prepare a witness, you not only have to learn the new world, you have to understand it. You have to go beyond just learning the jargon to understanding the way business is done: how things really work, what the real issues and procedures are, what roles different people play. For example, a client’s position on an organizational chart may not accurately reflect her real authority or responsibilities. You need to ask questions of your client and do your own research to truly understand this new world.

Understand the client’s personality, background, and needs. Clients facing the prospect of being a witness may come to you displaying a full range of emotions and attitudes, from overwrought to overconfident. The irony is that once you get to know him better, you may find that the initially overwrought client may make a good witness, while the overconfident client may make a lousy witness. Clients bring with them an enormous range of insecurities and fears about being questioned, knowledge of and familiarity with legal proceedings, and willingness and ability to learn.

Teach the client the unnatural and bizarre language of “question and answer.” Few clients realize how difficult and different this process is. It is necessary to find creative ways to help them understand both points. One way is to minimize their defensiveness or embarrassment. I sometimes tell witnesses that I feel like their high school French (or Latin, or German) teacher who has to condense the whole school year into just a few hours. To teach how different this process is, I may talk about the difference between a lump of clay and a rock, explaining that most witnesses treat questions like clay: they work them, worry them, play with them, and often mold them into something else. I remind them that questions should be thought of like rocks—hard and fast words that should either be answered precisely as asked, or challenged.

Encourage the client to talk about sometimes difficult matters. Questioning in different types of legal proceedings can often reach into areas that the witness views as private, sensitive, embarrassing, or even incriminating. As a lawyer, you cannot effectively represent your client as a witness if she is not fully candid and forthcoming. As a person, you must understand that you are asking someone to say things and admit things that she may not have admitted before, sometimes even to herself. This can be a long, hard process that must be handled with patience and feeling.

Shield the client from unnecessary intrusions or harm. Few clients want to be witnesses in legal proceedings, and a surprising number think their lawyer can wave a legal magic wand and make it go away. Occasionally, there are ways to avoid questioning. But if not, there is much you can do to act as a buffer for your client before, during, and after questioning. Consider ways to control the timing, location, subject matter, or other elements, in addition to acting as the funnel or a shield from aggressive opposing counsel, investigators, or parties. This process is stressful enough for clients without allowing unnecessary intrusions.

Advise the client every step of the way based on a full understanding and careful analysis of the law and the facts. The process of being a witness and the questions a client may be asked as a witness may expose him to a wide variety of risks: criminal, civil, financial, employment- or family-related, and more. As counsel, you need to be constantly on guard against these risks and ready to discuss them openly with your client when they arise. Being called as a witness can often lead to a difficult balancing of risks and opportunities, which requires your client’s best wisdom and judgment—at a moment’s notice. It’s up to you to prepare your client to be able to avoid those risks and to take advantage of the opportunities.

Guide the client through a sometimes strange and terrifying legal maze. From childhood, we are scared of the dark because we do not know what’s out there. For most people, being a witness is like being in darkness: they don’t know how to get through it, but they do know that there are monsters and other dangers lurking out there. You have to be aware of this, and take care to explain and guide them through each step, knowing that what may seem to you the smallest, most routine step may look like an unfathomable leap to your client.

Earn the trust and faith of the client. This is a circular process: the more confidence your client has in you, the more he will listen to you and the more help you can be when the client is on the witness stand. However, that trust and faith does not automatically come from the fact that you are a lawyer or that you have a nice office with diplomas on the wall. You have to earn that kind of relationship, just as you would have to earn it in the outside world—except that with your client, you have far less time to develop that relationship. Foremost throughout this process is the need to communicate clearly and effectively. There is so much that needs to be communicated about both the substance and the process that good communication becomes not just a means to an end, but an end in itself.

Additionally, it is important to understand the perspective of the people who walk into our offices. Much of a potential client’s perspective is shaped by what he reads in the papers and what he sees on television. We all know that on television, cases begin, reach their climax, and end all within the hour, with plenty of time for commercials. This gives people a grossly distorted view of litigation generally, and of being a witness specifically. Television and other media portray litigation as a game of miracles. In reality, litigation is not a game of miracles, but a game of inches. It is much more difficult and complex than the simplistic portrayal we experience on television. The media also create a common notion that there are only two types of witnesses: good guys (who don’t need lawyers and preparation) and bad guys (either who don’t deserve lawyers and preparation, or who don’t require lawyers or preparation because they will eventually get caught and confess). The best example of this phenomenon can be seen in the old Perry Mason series, which for years created the vision that our clients have of what being a witness is like. On that show, no witness ever seems to have a lawyer, and sooner or later, one of them confesses. Because of these notions and the effects they may have on testimony, it is important for us to understand clients’ expectations and their thinking coming into this process. Our responsibility is to understand and address the myths.

Agreeing to prepare a client to be a witness is a major undertaking: first, there is a great deal that has to be done to teach a layperson this strange new language; second, what must be taught is so foreign to most people that communicating it in a way that will really help them is an enormous challenge. Much of this book is written as if speaking directly to the client in the hope that lawyers will see not just what needs to be taught, but how it might best be communicated. The first step is for both lawyer and client to understand fully the importance and difficulty of meeting that challenge.